28 December, 2010

International Criminal Court Developments

On 10 December 2010, the Assembly of States Parties to the Rome Statute of the International Criminal Court (“the Assembly”) concluded its ninth session and adopted resolutions, inter alia, on the programme budget for 2011, permanent premises, governance, the Independent Oversight Mechanism and on Strengthening the International Criminal Court and the Assembly of States Parties.

A United Nations webcast is also available - here

The 9th Session followed the Kampala Review Conference (June 2010) which adopted a resolution relating to the crime of Aggression.  At Kampala provisions were adopted governing the terms of the ICC's ability to investigate and prosecute individuals for the crime of aggession.  The ICC parties agreed on a jurisdictional regime though procedures depend on how the matter gets to the ICC (e.g. by reference from the UN Security Council, State referral or the prosecutor's own initiative).  The Review Conference determined that the activation of jurisdiction is still subject to a positive decision by the ASP which cannot be taken before 1 January 2017 and one year after the ratification or acceptance of the amendments by 30 states parties, whichever is later. Read more on: Crime of Aggression

In Kenya there is concern about the ICC prosecutor having in his "cross-hairs" six Kenyans alleged to have been behind post-election violence - see here.  Kenyan MPs are seeking withdrawal from the court.  It is permissible for States to withdraw from the court but one year's notice is required and the withdrawal does not affect cases commenced prior to the notice of withdrawal.

Enforced Disappearances

On 23rd December 2010 the International Convention for the Protection of All Persons from Enforced Disappearance (Disappearances Convention) came into force after Iraq became the 20th country to ratify it.  The Convention aims to establish the truth about enforced disappearances, punish perpetrators and provide reparations to victims and their families.

An enforced disappearance takes place when a person is arrested, detained or abducted by a state or agents acting for the state. The authorities then deny that the person is being held or conceal their whereabouts, placing them outside the protection of the law.

The ramifications of enforced disappearances are severe. Those disappeared are often tortured and subjected to cruel, inhuman and degrading treatment. In many cases, they are secretly killed and their remains are hidden. Family members and those close to the person disappeared are left not knowing what has happened to their loved one, whether they are alive or dead. Entire communities can fracture under pressure as people fear being associated with those targeted.
The United Kingdom is not (yet) a party to this Convention.

Further reading see International Law Professors and Amnesty and International Coalition against enforced disappearances.

17 December, 2010

Drones - their legality in international law

The use of drones to attack targets was mentioned on this blog on 16th February and 18th April

Mr Philip Alston, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary execution produced a report in May 2010.  In October 2010, Chatham House London held a meeting to look at Drones and International Law. See below for Mr Alston's report and for a summary of the Chatham House meeting.

UNGA Report on Extra Judicial Execution                                                            

Drones and International Law

16 December, 2010

Is the Government up to the task it faces? Serious questions: no answers.

The General Election of May 2010 produced a "hung Parliament" and the politicians put together a Coalition Government.  They have now been in power for 7 months.  Naturally, they claim that they are trying to put right the economic mismanagement of the previous Labour administration but serious questions are now beginning to arise as to whether they are going about matters the right way.  Here are some of the questions - I don't have the answers but it is perhaps time that we as a nation started to find them:

Health and General Practitioners:

Should funds amounting to £80 billion be handed over to the management of General Practitioners - see Public Finance The Risks of GP Commissioning  Just how will the GPs be held accountable for such a huge amount of public money?  Will every penny actually be spent on health care?  Even the British Medical Association is unhappy with aspects of this plan - see Pulse Today

Taxation of large business:

Many large British business are now legally based abroad so as to minimise their tax liabilities - should the government not be taking this a great deal more seriously?  Are UK tax rates too high if businesses feel the need to be "relocating."  See Daily Mail - "The Great Tax Heist" - 16th December - "While the Coalition Government is forced to slash spending on public services - not to mention raising the ceiling on student tuition fees - private companises contrive to cut the tax they hand to the Exchequer."  [Note: The word "avoidance" is to be avoided since minimising one's tax liability is lawful].

University Funding:

University tuition fees will rise from 1st September 2012.  It is argued that this will wreck the chances of University education for many from less financially well-off backgrounds.  The rules about fees are particularly unfair in that the same rules do not apply across the U.K. and it is the English student who ends up paying by far the most.  At present, the government appears unwilling to even begin to address this regional inequity.  The legislation dealing with student fees is the Higher Education Act 2004 and Regulations made thereunder.  MPs voted on the Draft Higher Education (Higher Amount)(England) Regulations 2010.  The sponsor of the draft regulations is the Department for Business, Innovation and Skills and see their webpage dealing with Student Finance.

It is cliamed by some lawyers that the increased fees may be in breach of fuman rights law - see The Guardian 16th December for this view.   Mr Phil Shiner of Public Interest Lawyers is quoted as saying - "It is blindingly obvious that using so-called financial crisis as a guise, this government has set out to permanently change higher education to one based on elitism.  It is inconceivable that students from ordinary backgrounds could afford to take on such debts."  

Defence and the enormous waste of money:

The Strategic Defence Review produced a Royal Navy without an operational aircraft carrier and now the Harrier "jump jet" has been phased out of service - see BBC News.  The uniquely British Harrier gave magnificent service and large sums of public money were spent on it recently.  See Think Defence.  The Harrier decision seems to be particularly problematic given the aircraft's ability to operate from any land area giving U.K. Forces a very special capability which is now lost.  The Public Accounts Committee has issued a report "Managing the Defence Budget" which is highly critical.  Here are the opening words:  "

"The Ministry of Defence (the Department) is responsible for over £42 billion of annual expenditure. While it has managed to stay within budget each year, it has failed to exercise the robust financial management necessary to control its resources effectively in the long term. It has also failed to match its future plans to a realistic assessment of the resources available. There is a shortfall in planned expenditure against likely funding of up to £36 billion over the next ten years. The Strategic Defence and Security Review did not explicitly set out how this long-standing gap between defence spending and funding would be resolved. It is imperative that the Department should now do so."

... and whilst we are still thinking about the sea, the government has announced that the number of Coastguard Stations is to be cut from 18 to just 3.  The Independent 16th December.   This smacks of a government which knows the price of everything and the value of nothing.

Overseas Aid:

Just why is Overseas Aid being protected by the government - which continues to borrow - whilst almost everything at home is being slashed to the bone?  See Daily Mail 18th September.  Even if one accepts that the UK should maintain a certain level of such spending, there are other questions about the management and application of the money.

Access to justice:

Meanwhile, access to justice is likely to be severely limited by further drastic cuts to legal aid.  The government appears to be gambling with public safety by preferring rehabiltative sentences to imprisonment.  Questions remain about the resourcing of alternatives to imprisonment though Ministry of Justice proposals refer to paying new (probably private enterprise) providers of programmes by results.  Essential public services such as Policing are also facing very serious financial constraints and job cuts whilst the government pursues an expensive idea of introducing elected Police Commissioners.

MPs and their expenses:

Will the sorry saga of MPs and their expenses every be settled?  It continues to fester - see BBC News.

Public Sector Jobs:

Huge cuts in the public sector workforce are to take place - The Guardian 16th December. without there being a private sector strong enough to absorb them.  This seems to be the result of brutal cutting philsophy of the government whereas some urged a more managed approach to reductions.

On this December day, there is a strong cold northerly (arctic) wind and further snowfalls are forecast.  It is indeed a Bleak Midwinter and many are seriously questioning the ability of this government to act fairly and sensibly in what is undoubtedly a serious situation.  Many of the decisions are taken by very wealthy Ministers and are creating social problems which may lead to further civil unrest.  Then there is the decision to raise VAT to 20% from early January.  Many are seeing this as the death-knell or coup de grace for many already struggling smaller businesses.  This comes on top of some serious inflation which has occurred over the autumn.  This leads to the most serious question of all - "Is the Government actually up to the task?"  If the answer to that is NO then should they be trying to pass an essentially self-serving Act which will lock them  into a Fixed Term Parliament with the next election being held in 2015.

"A Hung Parliament will be Bad for Britain" - well it was Mr Cameron who said it - BBC News 4th April.

08 December, 2010

Chilcot to take further evidence in early 2011

It appears that the Chilcot Inquiry will be recalling former Prime Minister Blair and certain others.  The Guardian 8th December 2010.  See the Inquiry's Press Release of 8th December which indicates that further evidence will be taken in the period 18th January 2011 to 4th February 2011.

Relevant Role
The Rt Hon. Tony Blair
Prime Minister, 1997 – 2007

Admiral the Lord Boyce GCB OBE DL
Chief of the Defence Staff 2001-2003
John Buck
Director for Iraq 2003-2004

Tom McKane

Deputy Head of Defence and Overseas Secretariat, 2001-2002

Sir Gus O’Donnell, KCB

Cabinet Secretary and Head of the Home Civil Service, 2005 to date
Stephen Pattison

Head of UN Department, 2001-2003 and Director for International Security 2004 – 2007

Sir David Richmond KBE CMG

Deputy UK Special Representative to Iraq, 2003-04; UK Special Representative to Iraq, 2004; and Director General Defence and Intelligence, FCO, 2004-06

The Rt Hon. Jack Straw MP

Secretary of State for Foreign and Commonwealth Affairs, 2001 – 2006

Air Chief Marshal Sir Glenn Torpy GCB CBE DSO

UK’s Air Component Commander for Op Telic One 2003; Chief of Joint Operations (CJO) 2004 – 2006, Chief of the Air Staff 2006-2009

Lord Turnbull of Enfield GCB
Cabinet Secretary and Head of the Home Civil Service, 2002 – 2005
Sir Stephen Wall GCMG LVO
Prime Minister’s Adviser on European Issues and Head of the Cabinet Office’s European Secretariat, 2000 – 2004

Lord Wilson of Dinton GCB

Cabinet Secretary and Head of the Home Civil Service, 1998 – 2002

These hearings will be open to the general public.

The Inquiry has also requested written evidence from the following individuals: 

Relevant Role
Lord Bach of Lutterworth
Minister for Defence Procurement, June 2001 – May 2005

Air Chief Marshal Sir Anthony Bagnall GBE, KCB
Vice Chief of the Defence Staff, 2001 - 2005

The Rt Hon. The Lord Drayson

Minister of State for Defence Equipment and Support, 2005 - 2007

The Rt Hon. The Lord Goldsmith

Attorney General, 2001 - 2007

Dr Brian Jones

Head of the Nuclear, Biological, Chemical Technical Intelligence Branch, Defence Intelligence Staff 1987-2003
Major General Albert Whitley

Senior British Land Adviser to Coalition Forces and Land Component Commander, 2002 - 2003